Application for divorce with children

Application for divorce with children through the court

The presence of common minor children of the spouses is one of the grounds on which the marriage can be dissolved only through the court. It does not matter whether the child was born before the marriage or adopted — if the spouses are listed as the child’s parents on the birth certificate, then the divorce occurs only through the court.

The appeal to the court is carried out by filing a statement of claim. At the same time, the law allows several related claims to be combined in the claim at once — for example, on the division of the joint property of the spouses or on whom the child will live with and the procedure for paying alimony from the second parent.

A lawsuit can also be filed in court if the parties have not agreed on which parent the children will live with, or if there are demands for the division of jointly acquired property.

Application for divorce with children by mutual consent

The parties may determine all the conditions for divorce by mutual consent. In this case, together with the statement of claim, the agreement concluded between the parties may be submitted to the court, or it is sufficient to indicate in the claim itself that there is no dispute between them about the children.

All additional issues related to the maintenance of children and the division of property may also be resolved by the parents by a notarized agreement or in a separate court proceeding after the divorce. However, in this case, the judge will still be obliged to clarify issues related to the upbringing and maintenance of children during the divorce.

Where to file for divorce if there are minor children

According to the Civil Procedure Code of Ukraine, divorce cases are considered by the court at the defendant’s place of residence. At the same time, the law does not oblige to conclude an agreement on the procedure for maintaining minors in writing — it is enough to indicate in the claim that the dispute over the upbringing of children between the spouses has been resolved.

F the spouses were unable to agree on the issue of children or the claim additionally states claims for the division of property in an amount exceeding, then the divorce process will take place in a district or city court.

As for the question of which court should be territorially filed, the general rule is that the claim should be filed at the place of residence of the second spouse. However, given the provisions of the Civil Procedure Code of Ukraine, if a man with whom a minor child lives applies to the court, he can file an application at his place of residence.

Statement of claim for divorce with children

A statement of claim for divorce in the presence of minor children is drawn up according to the rules of the Civil Procedure Code of Ukraine and has the following structure:

The introductory part indicates:

• name and address of the court;
• details of the plaintiff and defendant (full name, address, telephone number);
• details of the representative, if present (full name, telephone number, power of attorney number);
• title of the claim indicating the demands on the defendant, if any, for example: “Statement of claim for divorce and recovery of alimony.”

The descriptive part consists of the following information:

• information about the marriage (date and name of the registration authority) is indicated;
• from what moment the marital relations between the spouses actually ceased, that is, the period of living separately from each other and the fact that a common household is not maintained, is indicated;
• if an agreement has been reached between the parties on the terms of the divorce and the procedure for raising and supporting children, then this should also be indicated in the application;
• if agreement is not reached, the reason for the dissolution of the marriage should be indicated so that the court can objectively assess the situation and make an appropriate decision or provide the parties with a period for reconciliation;
• then other additional requirements are described, if any — on the collection of alimony, division of property, determination of place of residence and the procedure for communication with the child.

The request consists of the demands that the court must resolve:

• on divorce;
• on making a decision on other issues stated in the claim.

Divorce documents with children through the court

The final part of the statement of claim lists copies of all documents that will be sent to the court:

• plaintiff’s passport, taxpayer code;
• defendant’s passport, taxpayer code (if any);
• marriage certificate;
• children’s birth certificate;
• receipt for payment of court fee.

In the absence of these documents, according to the Civil Procedure Code of Ukraine, the judge has the right to issue a ruling to leave the claim without action. Also, depending on the circumstances of the case and the stated requirements, other documents on which the plaintiff’s position is based must be provided.

Application for divorce and alimony through the court

Alimony payments are assigned in favor of the parent with whom the child remains to live. Therefore, the claim for the appointment of alimony must indicate the requirement for the child to live with the plaintiff. In judicial practice, the decision is mainly made to leave the child with the mother, accordingly, alimony is usually paid by the father.

If the child already lives separately from the parent, then in the descriptive part of the application it should be indicated that an agreement on the payment of alimony for the minor has not been reached, since the defendant does not participate in the upbringing of the child and does not provide funds for his or her maintenance.

The application should also indicate in what order it is necessary to collect alimony – in shares of income or in a fixed monetary amount.

• If alimony is collected as a percentage of income, then the court should be provided with evidence confirming the defendant’s earnings.
• If alimony is collected in a fixed monetary amount, then the circumstances under which alimony should be assigned in this form should be indicated. For example, the man’s lack of income or no income at all.

Usually, alimony is assigned as a percentage of income, in some cases – in fixed payments monthly (in a fixed monetary amount). However, the court may increase or decrease their amount taking into account the financial situation of the parties or other circumstances worthy of attention.

Application for divorce with division of property in the presence of children

In this case, along with the requirement to terminate the marriage, the descriptive part of the application should indicate that no agreement on the division of property has been reached with the defendant, and therefore it is necessary to conduct it in court. Next, the property acquired by the spouses during the marriage and subject to distribution should be indicated.

If the subject of the claim is indivisible property, in which it is impossible to separate parts, then one man may be assigned compensation for it or other things of the same value may be transferred.

Children’s personal belongings and deposits opened in their name are not the joint property of the spouses. Such property is not subject to division between the parents and remains with the child.

Court fee for divorce through court with children

When filing for divorce through the court in 2021, the court fee is paid by the plaintiff in the amount of 908 UAH. If other claims are made simultaneously with the dissolution of the marriage, the court fee must be paid for each of them:

• When dividing jointly acquired property — depending on the value of the property declared for division in the amount of 1% of its value.
• When including a claim for alimony withholding, the plaintiff is exempt from paying the court fee. If the claim is satisfied, it is subject to payment by the defendant in the amount of UAH 908 (as of 2021).
• When filing claims for the child’s place of residence, the court fee is paid in the amount of UAH 908 (as of 2021), that is, as for a non-property claim.

Once the court decision comes into legal force, the marriage will be considered dissolved.

The procedure for considering a claim in divorce proceedings with children

When considering a divorce claim, the court takes into account all the circumstances of the case. The decision to dissolve the marriage is made if the trial establishes that further cohabitation of the spouses and the preservation of the family are impossible. If the husband or wife refuses to get a divorce, the hearing on the case may be postponed and a period of no more than six months may be set for reconciliation of the parties.

If the parties have independently agreed on issues of child support, and there are no disagreements on other divorce-related conditions between them, then the agreement concluded between the parents must be submitted to the court along with the statement of claim. In such a case, the court makes a decision to dissolve the marriage without clarifying the motives that prompted the spouses to do so.

If the agreement is not provided or its implementation violates the rights of the parties to the process, then, according to the Family Code of Ukraine, the court must determine the following conditions for the dissolution of the marriage:

• with whom the children will live;
• from which parent alimony will be collected and in what order.

At the request of the spouses, stated in the statement of claim, the court may also, within the framework of one trial:

• divide jointly acquired property;
• determine the amount of alimony for a man, if there are grounds for this (if the man became incapacitated during the marriage, is caring for a disabled child or a child under 3 years of age).

The moment of divorce is recognized as the date of entry into force of the court decision, i.e. after 30 days from the date of its announcement. However, this period may be extended if an appeal is filed, since the case will be considered by the court of second instance.

The process of divorce is subject to state registration. After the decision comes into legal force, the court must send the decision to the Civil Registry Office at the place of marriage registration. It should not be forgotten that the court decision is the final document confirming the divorce. The divorce certificate is not disclosed.

Peculiarities of Divorce with a Pregnant Wife and a Minor Child

The law primarily protects the rights of children and pregnant women, therefore, in accordance with the Family Code of Ukraine, it is prohibited to file a lawsuit for divorce if the wife is pregnant or they have a common child under one year old. Divorce under such conditions is possible only if unlawful (criminal) behavior was committed against the wife or child or if it is proven by an examination that the husband is not the father of the child.